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Orace vs. Google: Order re in limine motions, 2012-1-4

Orace vs. Google: Order re in limine motions, 2012-1-4

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Published by ck5045
Judge Alsup decides on 9 of 10 in limine motions.
Judge Alsup decides on 9 of 10 in limine motions.

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Published by: ck5045 on Jan 05, 2012
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01/05/2012

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   U  n   i   t  e   d   S   t  a   t  e  s   D   i  s   t  r   i  c   t   C  o  u  r   t
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12345678910111213141516171819202122232425262728IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIAORACLE AMERICA, INC.,Plaintiff,v.GOOGLE INC.,Defendant.No. C 10-03561 WHA
OMNIBUS ORDER ONMOTIONS IN LIMINE FORPRETRIAL CONFERENCE
The pretrial conference in this action was heard on December 21, 2011. In advance of thatconference, plaintiff submitted five motions in limine and defendants submitted five.
G
OOGLE
M
OTION IN
L
IMINE
N
UMBER ONE
(T
O
E
XCLUDE
L
INDHOLM
E
MAIL AND
D
RAFTS
)
Google’s motion in limine number one is
D
ENIED
. Google seeks to exclude the Lindholmemail under FRE 403, assuming that its pending petition for writ of mandamus is eventuallydenied. In support, Google submits the declaration of the email’s author, Tim Lindholm, statingthat prior to writing the email, he never reviewed the patents or copyrights asserted by Oracle, henever reviewed any of the source code or implementation for the allegedly infringing aspects of Android, and he did not (and had no legal training necessary to) analyze whether
Case3:10-cv-03561-WHA Document676 Filed01/04/12 Page1 of 8
 
   U  n   i   t  e   d   S   t  a   t  e  s   D   i  s   t  r   i  c   t   C  o  u  r   t
   F  o  r   t   h  e   N  o  r   t   h  e  r  n   D   i  s   t  r   i  c   t  o   f   C  a   l   i   f  o  r  n   i  a
123456789101112131415161718192021222324252627282Android infringed.This attorney-prepared declaration is unpersuasive. Mr. Lindholm was a former Sunengineer who co-wrote the book, “The Java Virtual Machine Specification,” and was a member of early Java development teams. Mr. Lindholm joined Google in July 2005 and immediatelyworked on Android as a “generalist and interpreter of the engineering/business/legal ecosystem.”One of Mr. Lindholm’s roles on the Android team was to help negotiate a license for Java.Mr. Lindholm’s background shows that he was quite knowledgeable about Java and Androidtechnology as separate platforms and any potential crossover between the two platforms, or so areasonable jury could find. His admission that Google needed a Java license is relevant to theissue of infringement.The email is also relevant to damages. It goes to show that Google had no viablealternatives to Java. It also goes to willfulness because the email was sent after Oracle accusedGoogle of infringement. Since Mr. Lindholm had a deep background in Java and Androidtechnology, the email goes to show that there was an objectively high likelihood that Google’sactions constituted infringement of a valid patent.The risk of 
unfair 
prejudice does not outweigh the email’s relevance. Google is worriedthat the jury will interpret the email without context and overvalue its importance. Subject to thisorder’s ruling on Oracle’s motion in limine number five, counsel can try to explain it away orreduce the email’s significance by introducing testimony along the same lines as Mr. Lindholm’sdeclaration. But the probative value outweighs any unfair prejudice.
G
OOGLE
M
OTION IN
L
IMINE
N
UMBER
T
WO
(T
O
E
XCLUDE
A
LLEGED
P
ERFORMANCE
B
ENEFITS OF
A
NDROID WITH THE
A
CCUSED
F
UNCTIONALITY
)
Google’s motion in limine number two is
D
ENIED
. Oracle can present the performancetests as evidence of Android’s performance improvements with the accused functionality. Googleargues that the performances tests were unreliable because (i) it was unclear which Oracleengineer modified the Android code, (ii) the code could have been modified more cleanly(without affecting non-infringing functionalities), and (iii) the tests had limited relevance toreal-world use of Android devices.
Case3:10-cv-03561-WHA Document676 Filed01/04/12 Page2 of 8
 
   U  n   i   t  e   d   S   t  a   t  e  s   D   i  s   t  r   i  c   t   C  o  u  r   t
   F  o  r   t   h  e   N  o  r   t   h  e  r  n   D   i  s   t  r   i  c   t  o   f   C  a   l   i   f  o  r  n   i  a
123456789101112131415161718192021222324252627283Oracle responds that the performance tests were performed by experienced engineers whowill testify at trial that their modifications were reasonable and reliable and be subject to cross-examination before the results are introduced. The engineers had years of experience conductingperformance analyses on similar software. The engineers downloaded Android source code fromGoogle’s website. They followed Google’s instructions on building the Android code. The testswere conducted with widely accepted benchmarks that Google itself identified on its website.The tests were conducted both on emulators and on actual Android phones. The tests usedhardware that Google used internally to test Android. The results using unmodified code wereconsistent with Google’s own benchmark results. And the results and methodswere reproducible.While Oracle did not eliminate all the possible shortcomings of these performance tests,the relevance of the results seem to outweigh the prejudice of any potential imprecision.Furthermore, the reliability of the performance test passes FRE 702 and
 Daubert 
scrutiny. Oracleexplained who was responsible for what during the testing, and must do so again at trial. Oracleexplained why the engineers had to remove specific sections of code to remove the patentedfunctionalities at issue, and must do so again at trial. The tests used benchmarks that were widelyaccepted by the industry, including Google, as reliable proxies for real-world performance.Unfortunately for Google, it did not design its own performance tests. Without competing resultsfrom Google, it is difficult to know how Oracle’s results are biased and unreliable.Google also argues that evidence of performance testing is irrelevant to liability andtherefore should be limited to the damages phase of trial. This order disagrees. The performancetests show that the accused code ran on Android-operated devices. The tests also show thatGoogle would have induced device manufacturers to install Android with the allegedlyinfringing functions.
G
OOGLE
M
OTION IN
L
IMINE
N
UMBER
T
HREE
(T
O
S
TRIKE
E
XPERT
D
AMAGES
O
PINION
)
This motion will be addressed in a separate order.
Case3:10-cv-03561-WHA Document676 Filed01/04/12 Page3 of 8

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